United States v. Flagg Building Improvements

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

September 4, 2009

UNITED STATES, FOR THE USE OF ELEVATOR TECHNOLOGY, A CALIFORNIA CORPORATION, PLAINTIFF;v.FLAGG BUILDING IMPROVEMENTS, A CALIFORNIA CORPORATION; K.O.O. CONSTRUCTION, A CALIFORNIA CORPORATION; TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, A CONNECTICUT CORPORATION; AND DOES 1 THROUGH 25; INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Honorable John A. Mendez United States District Court Judge

ORDER AFTER HEARING ON POST-JUDGMENT MOTIONS

JUDGMENT HAVING BEEN ENTERED by the Clerk of the above-captioned Court on June 29, 2009 in accordance with the JURY VERDICT RENDERED on June 26, 2009, the parties brought the following post-judgment motions before the Court, the Honorable John A. Mendez, presiding, as follows:

· Motion For Judgment As A Matter Of Law, For New Trial, Or To Modify Judgment [175] by Defendant and Counter-Claimant Flagg Building Improvements ("Flagg") and Travelers Casualty and Surety Company of America ("Travelers"); · Motion To Alter/Amend Judgment To Clarify Jury Verdict [182] by Plaintiff and Counter-Defendant Elevator Technology; · Motion To Alter/Amend Judgment To Include Award Of Prejudgment Interest [180] by Plaintiff and Counter-Defendant Elevator Technology; and

The motions came on for hearing before Judge Mendez on August 12, 2009. Thomas G. Trost, Esq., appeared on behalf of Plaintiff and Counter-Defendant Elevator Technology; James P. Chandler, Esq., appeared on behalf Flagg Building Improvements, the Joint Venture and Travelers; and Treven I.

Tilbury, Esq., appeared on behalf of Defendant K.O.O. Construction. Upon reviewing the moving, opposing, and replying papers on file in this matter as well as the supporting documents thereto, and having heard argument of counsel, and good cause appearing,

THE COURT HEREBY ORDERS AS FOLLOWS:

1. The Motion for Judgment As A Matter Of Law, For New Trial, Or To Modify Judgment [175] filed by Defendant and Counter-Claimants Flagg and Travelers is DENIED.

2. The Motion to Alter/Amend Judgment to Clarify Jury Verdict [182] filed by Plaintiff and Counter-Defendant Elevator Technology is GRANTED. The Judgment is hereby amended as to the damages under the Breach of Contract claim so as to be the sum of $51,489.25, which is the identical amount as awarded on the Miller Act Bond claim. The Court further clarified that the sum awarded ($51,489.25), may only be collected once from either The Joint Venture of Flagg Building Improvements and K.O.O. Construction, or Travelers Casualty and Surety Company of America, who are jointly and severally liable.

3. The Motion to Alter/Amend Judgment to Include Award of Prejudgment Interest [180] filed by Plaintiff and Counter-Defendant Elevator Technology is GRANTED. The Judgment is hereby amended to include recovery of $22,173.31 in prejudgment interest as against The Joint Venture of Flagg Building Improvements and K.O.O. Construction on the Breach of Contract claim and as against Travelers on the Miller Act claim. Said amount may only be collected once from any of the parties.

4. The Motion for Attorneys' Fees and Costs [178] filed by Plaintiff and Counter-Defendant Elevator Technology is GRANTED with a reduction of $3,890 for the work of Plaintiff to set aside a default. Therefore, the Judgment is hereby amended to include an award in favor of Elevator Technology for the sum of $184,631.50 in attorneys' fees and costs against and from The Joint Venture of Flagg Building Improvements and K.O.O. Construction and Travelers Casualty and Surety Company of America. Said amount may only be collected once from any of the parties.

5. The Cost Bill filed by Plaintiff and Counter-Defendant Elevator Technology is GRANTED the Judgment is hereby amended to include an award for the sum of $4,384.50 against and from The Joint Venture of Flagg Building Improvements and K.O.O. Construction, and Travelers Casualty and Surety Company of America, jointly and severally. Said amount may only be collected once from any of the parties.

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